Court File and Parties

Court File No.: 122727 Date: February 14, 2013 Location: London, ON

Ontario Court of Justice

Between: Her Majesty the Queen -and- Jeffrey Bond

Counsel

For the Accused: R. Braiden For the Crown: D. Rows

Judge: Jonathon C. George

Charges

[1] Jeffrey Bond is charged that, while his ability to operate a motor vehicle was impaired by alcohol, he did operate a motor vehicle, and that at the same time the concentration of alcohol in his blood exceeded eighty milligrams, contrary to section 253(1)(a) and (b) of the Criminal Code of Canada.

Issues

[2] There are three issues. First, has the Crown established beyond a reasonable doubt that Mr. Bond was impaired at the time he operated his vehicle? Second, and relative to the over .80 charge, were Mr. Bond's section 8 Charter rights violated? Third, if they were, should the breath test results be excluded pursuant to section 24(2) of the Charter of Rights and Freedoms?

Evidence

[3] Not many facts were in dispute. The court heard from one witness only, Constable Beaumaster of the Ontario Provincial Police. He was the investigating officer and the qualified breath technician who took the samples.

[4] He testified that on August 9th, 2012 he was on duty alone, and operating a marked OPP police cruiser in the Municipality of Middlesex-Center. At around 2:13am he observed a blue Cadillac approaching him as he was driving in an eastbound direction on Windgreen Rd. The officer, for whatever reason, ran the license plate number which came back as "unattached to someone in the St. Thomas area". He testified that he wanted to verify this, and as such wanted to conduct a traffic stop.

[5] Officer Beaumaster then noticed that the vehicle had turned right onto Stephen-Moore Drive, at some point stopping and parking on the east side shoulder of that road. As the officer pulled in behind the parked vehicle he observed someone walk away from the vehicle, toward an area between the two houses closest to where the vehicle parked. The officer testified that he did not specifically see the person exit the vehicle but he could not then, nor after a later inspection, see any occupants in or other people around the vehicle.

[6] After checking the license again the officer determined that the vehicle was not at its registered address.

[7] The officer testified that he exited his cruiser and walked towards the area he saw the person walk. Once arriving at an area between two nearby houses, he located the accused Mr. Bond crouched behind the air conditioner at 72 Stephen-Moore Drive. According to the officer, Mr. Bond stood up and was initially unresponsive to questions put to him. Mr. Bond "staggered to his right", quickly gaining his balance. Mr. Bond indicated his last drink was some twenty minutes prior, having had five alcoholic beverages in total throughout the evening. He was noted to be speaking with "slurred speech". The officer indicated that he could detect the odour of an alcoholic beverage emanating from Mr. Bond's breath, and that his eyes were "red and glossy". According to the officer, he was able to make these physical observations as he illuminated his face and general area with a flash light.

[8] At 2:15am Officer Beaumaster arrested Mr. Bond for impaired operation of a motor vehicle. In direct examination, he indicated that he formed the opinion he was operating a motor vehicle in an impaired state based on the odour of alcohol, and the fact he staggered. After the arrest, Mr. Bond was handcuffed, searched, escorted to and placed into the police car. This was followed by the officer searching the vehicle in order to find identification, as the accused did not have his wallet on his person. The officer indicated he searched the area between the houses for alcohol. He did not find any.

[9] After conducting the searches noted above, the officer read Mr. Bond his rights to counsel. This was done at 2:26am. At 2:27am and 2:28am respectively, Mr. Bond was read the breath demand and a caution. The officer estimates leaving the scene at around 2:37am and arriving at the local OPP detachment at about 2:58am.

[10] At the detachment, two suitable samples of Mr. Bond's breath were obtained with both yielding results of 130/100.

[11] In cross examination, the officer conceded he noticed nothing unusual about the manner of Mr. Bond's driving, and that his speed was not excessive or too slow. As well, he noticed nothing unusual about the way in which the vehicle was parked at the side of the road, noting however that he did not actually observe the vehicle make the turn and pull over.

[12] He was cross examined at some length about Mr. Bond's departure, on foot, from the vehicle to the area between the two homes. He noticed no irregularities in his gait nor did he observe any unsteadiness. The officer agreed that Mr. Bond staggered only once, at the outset when he was standing up from a crouched position; that he quickly "righted" himself and that at no point thereafter did he stumble.

[13] Officer Beaumaster confirmed that he located no alcohol either in the vehicle, or in the area where the accused was crouched. He confirmed that Mr. Bond was wearing flip flops and that there was a slight grade in the area where he first encountered him. He noted nothing unusual about Mr. Bond's manner of speech while, oddly, maintaining that it was "slurred". Defence counsel attempted to clarify what exactly led to his conclusion that Mr. Bond was impaired. The officer essentially summarized his evidence to that point and indicated the following: That he drove past the laneway where he should have gone (he lived close by); that he parked on the side of the road at a residence he didn't live; that he was crouched when he found him; the fact this was all occurring in the early morning hours; and the one stagger as he got up from the ground. In stating these grounds, he was silent on the odour of alcohol.

[14] From the point of arrest onward, there were no unusual actions on Mr. Bond's part. The alcohol influence report, which was completed by this officer, indicated simply that the accused was polite, that he exhibited no 'unusual actions', that his speech was fair and his condition orderly.

[15] He further explained that he didn't consider the use of a roadside screening device. He didn't even know if he had one in the cruiser.

Applicable Law

[16] Section 254(2) of the Criminal Code of Canada provides that:

If a peace office has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a) in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol.

[17] Subsection (b) reads:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[18] Section 254(3) provides that:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood.

Was there a Charter Breach?

[19] The standard for a roadside screening device demand is reasonable suspicion. It is the lowest threshold on the continuum of findings in impaired driving cases. In Mr. Bond's instance there can be no doubt the officer had sufficient grounds to make this particular demand. This is conceded by the defence. The issue is whether or not there were reasonable and probable grounds to forego that step and make the breath demand. It is well established that reasonable and probable grounds has both a subjective and an objective component. I am of the view officer Beaumaster had an honest belief Mr. Bond committed the offence. However, was this honestly held belief supported by objective facts? Quoting directly from R. v. Bush 2010 ONCA 554, at paragraph 38, and R. v. Storrey, [1990] 1 S.C.R. 241, at page 250 - "The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest." In assessing this, one must always be mindful of the Court's decision in R. v. Stellato, [1994] 2 S.C.R. 478 which is that one's ability to operate a motor vehicle need only be slightly impaired to sustain a conviction. The importance of this, in this context, is it is unnecessary for an accused to be in an extreme state of intoxication before the officer has reasonable and probable grounds. To further state the test then would be to ask whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol.

[20] Applying the above to these circumstances is somewhat tricky as it is tempting to take everything the officer says at face value, without careful assessment. He generally gave good evidence; was candid, and as I indicated earlier he clearly believed he had sufficient grounds to move directly to the breath demand. However, I must do more than that. In determining whether or not reasonable and probable grounds exist, one must undertake a fact-based exercise that is dependent upon all the circumstances of the case (see Bush, para. 54). This direction from the Court of Appeal is most important as it can, as well, be tempting to dissect each of the officers' stated grounds, "looking at each in isolation" (Bush), in an attempt to justify the officer's actions.

[21] In Bush, at paragraph 56, the court states:

An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information (also see R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont.C.A.)).

[22] Understanding that I cannot let the existence of any one piece of indicia, or lack thereof, overtake my analysis, or 'muddy the waters' so to speak, it is necessary that I point out the following. First, that there was no evidence of bad driving. Second, that it is unclear whether there was an odour of alcohol. Third, that but for the stagger as the accused got to his feet, there was nothing unusual about his walking, nor was there any unsteadiness. Fourth, that there was nothing unusual in the way the vehicle was parked. Fifth, that notwithstanding the use of the word 'slurred' on at least a couple of occasions, the officers evidence was clear in that Mr. Bond's speech was fine. This was the evidence he gave in court, which was confirmed by his notations in the alcohol influence report. The Crown quite rightly conceded that it would be improper to consider the fact the accused had left his vehicle prior to the officer pulling in behind him. This fact clearly impacted the officer's assessment of the situation, but for these purposes it can only be a piece of evidence relevant to, possibly, consciousness of guilt for some unknown offence. It has no other value.

[23] The breath samples were obtained as a result of a warrantless search. In these circumstances, the Crown has the burden of establishing reasonableness. In the result, I cannot conclude that it was reasonable as the arresting officer lacked sufficient grounds to make the breath demand. The grounds provided by the officer, as set out earlier, gave rise to a reasonable suspicion only. There was a breach of Mr. Bond's rights under section 8 of the Charter.

Should the Breath Samples be Excluded?

[24] The required approach is as set out by the Supreme Court in R. v. Grant (2009), 245 C.C.C. (3d). The court must consider the seriousness of the breach; the impact of the breach on the Charter protected interests of the accused; and society's interest in the adjudication of the case on its merits. Respecting the first step, it would be easy to simply say that the officer acted in good faith, and therefore the breach was insignificant. That, however, is not the test. At most, the officer had a reasonable suspicion which would have enabled him to demand a roadside sample into an approved screening device. Notwithstanding the attribution of good faith, I am unable, with confidence, to otherwise characterize the officer's investigative efforts. I am concerned by the fact the officer did not have readily available an approved screening device. I am more concerned by the fact the officer did not even turn his mind to this possibly being the appropriate step. Although the officer's evidence was presented in a favourable manner, it was to some extent tainted by the fact he attempted to describe the accused' speech as slurred while at the same time maintaining his speech was fine. My general impression was that he was preoccupied with the fact Mr. Bond exited his vehicle and walked away from the area of the vehicle, and that this coloured all of his other observations.

[25] As to the impact on the accused' Charter protected interests, I am mindful of the observation in Grant that breath sample collection is a minimally intrusive exercise. There is nothing remarkable on these facts that would lead me to any other conclusion, which doesn't detract from the fact the officer made the decision to bypass a step which, in my view, had to be followed, and which led to Mr. Bond losing his liberty for a period of time.

[26] It is clear as well that the public has an interest in seeing cases like this adjudicated on its merits. This question, put this way, were it the only consideration, would inevitably lead to admission. However, the court cannot be seen to condone what happened either. There is a tension between the short term desire to see a particular case adjudicated on the facts, and the prospective view in assessing how admission of this type of evidence, taken in circumstances like these, will impact our system of justice. The court in R. v. Yeung 2010 ONSC 2292, [2010] O.J. No. 1579 at paragraph 69 states the following:

…..the public should expect that when they are stopped by the police, their Charter rights will be respected and that the police will not detain or arrest drivers without the requisite grounds.

[27] I agree with this statement.

[28] Having considered the Grant test, and in weighing all of the factors present, I conclude that the breath test results ought to be excluded. Count two is therefore dismissed.

Impairment

[29] Respecting count one, which alleges impaired operation of a motor vehicle, given my comments earlier respecting the officer's observations, I have no choice but to dismiss that charge as well. The Crown has not proven, to even the slightest degree, that Mr. Bond's ability to operate a motor vehicle was impaired by alcohol. I have already found that the arresting officer lacked reasonable grounds to arrest Mr. Bond and make the breath demand. The factors the police officer considered in formulating his grounds are the same facts the Crown relies upon in seeking a conviction on this count. The Crown has simply fallen short in meeting their burden.

Date: February 14, 2013

Justice Jonathon C. George